Wrongful life case thrown out

June 12 2002

A NSW Supreme Court judge today ruled that wrongful life cases have no place in Australian law.

In a test case on whether disabled children can sue doctors in their own right for negligence that resulted in their birth rather than termination, Justice Timothy Studdert ruled wrongful life was not recognised in Australian courts.

Chelsea Edwards, 2, was born with the chromosome disorder Cru du Chat syndrome after a failed vasectomy.

IVF baby Keeden Waller, 17 months, inherited the clotting disorder AT3 from her father, which was known to transmit to 50 per cent of embryos and was detectable in foetal testing.

Alexia Harriton was born 20 years ago blind, deaf, spastic and mentally retarded after her mother was not diagnosed with rubella in the early stages of pregnancy. ");document.write("

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All three tried to sue, claiming if it was not for the negligence of doctors, the pregnancies would have been terminated.

Lawyers for the three said they would consider an appeal.

However in his judgment on Chelsea Edwards' case, Justice Studdert said under the law the doctor's only duty of care was not to cause her injury.

"I cannot accept that (the doctor who performed the vasectomy) owed to (Chelsea) a duty to prevent her conception, or to give to her parents advice such as would have prevented her conception, and I consider that to recognise any such duty would be contrary to public policy," he said.

There were clearly identifiable public policy considerations against the recognition of wrongful life claims, the judge said.

They included "the precious nature of human life itself, and the erosive effect that the acceptance of such claims would have upon the value to be accorded to human life," Justice Studdert said.

"Allied to this is the impact that the recognition of this class of claim would have upon the self esteem of those born with disabilities and upon their perceived worthiness by other members of society."

In the case of Alexia Harriton, Justice Studdert said the doctor did not breach his duty of care.

Her claim for damages would only have succeeded if the wrongful life claim could proceed, while the other two had alternative claims.

It was not contended that the doctor was responsible for Alexia's mother becoming infected with rubella or could have protected her from it by treatment, he said.

Justice Studdert also ruled that to calculate damages in Alexia's case, it was necessary to compare non-existence with a disabled life, which was "an impossible exercise".

Justice Studdert said he found the British ruling in McKay versus Essex Health Authority persuasive, rejecting submissions in this case that those judges had incorrectly found the child asserted a duty to be killed.

Reiterating the public policy considerations, the judge said if wrongful life claims were recognised, mothers would be open to being sued for continuing with a pregnancy.

"The potential for the disturbance of family life that this could have and for the wider disturbance of the fabric of society is obvious," he said.

He made similar observations in the case of Keeden Waller, again finding the doctor did not breach his duty of care as the medic's only duty was not to injure the unborn baby.

Lawyers for the three said an appeal was likely.

The three cases will come before court again on Tuesday to consider costs and alternative claims for compensation by the Wallers and the Edwards.